HomeMy WebLinkAboutHomeAway.com Inc; 2020-01-08;VOLUNTARY COLLECTION AGREEMENT
THIS VOLUNTARY COLLECTION AGREEMENT ("Agreement") is dated / ✓~ 7
2019 and is between HOMEAWAY.COM, INC., a Delaware c01poration ("HomeAwa~
City of Carlsbad, California (the "City"). Each party may be referred to individually as a "Party"
and collectively as the "Parties."
HomeAway and its subsidiaries operate an internet based platform that allows homeowners
("Homeowners") to advertise the availability of their properties to travelers ("Guests") seeking
accommodations through various brands and websites, including, but not limited to, HomeAway,
Vrbo, and VacationRentals.com ("HomeAway Platform").
HomeAway and the City enter into this Agreement voluntarily in order to facilitate the
reporting, collection, and remittance of transient occupancy tax (the "TOT") imposed under
Chapter 3.12 of the Carlsbad Municipal Code, as well as any applicable Carlsbad Tourism
Business Improvement District assessments (the "CTBID Assessments") levied pursuant to
Resolution No. 2005-281 and Chapter 3.37.050 of the Carlsbad Municipal _Code, by Homeowners
and Guests on the HomeAway Platform for occupancy of accommodations located in the City in
accordance with this Agreement as follows:
1. With respect to any transaction between a Homeowner and a Guest booked and paid for
through the HomeAway Platform for accommodations for which TOT and CTBID Assessments
are due, and during the period in which this Agreement is in effect (as defined below), and solely
pursuant to the terms and conditions of this Agreement, HomeAway agrees to collect and remit
TOT and CTBID Assessments.
2. TOT and CTBID Assessments shall be collected and remitted at the applicable rate by
HomeAway based upon the entire amount charged by the Homeowner in connection with the
transaction, including but not limited to the following fees charged by a Homeowner: rental fee,
service fee, booking fee, cleaning fee, property damage fee, and any other use-related fee; but
excluding refundable damage deposits. HomeAway shall file returns on the form and in the time
and manner described in the Carlsbad Municipal Code or as agreed between the parties in writing.
3. HomeAway agrees to commence collecting and remitting TOT and CTBID Assessments
stru.ting on Febrnary 1, 2020(the "Effective Date"). For the avoidance of doubt, this Agreement to
collect shall not extend to any period or transaction prior to the Effective Date or after the
termination of this Agreement, or to any user's transaction completed through any means, method
or platform other than the HomeAway Platform.
4. On a prospective basis upon the Effective Date of this Agreement, and during any period
in which this Agreement is in effect, in accordance with the terms of this Agreement, HomeAway
agrees contractually to assume liability for any failure to report, collect, and/or remit the correct
amount of TOT and CTBID Assessments, including, but not limited to, penalties and interest,
lawfully and properly imposed in compliance with law. Nothing contained herein nor any action
taken pursuant to this Agreement, including but not limited to the collection or remittance of TOT
and CTBID Assessments, shall impair, restrict, or prevent HomeAway from asserting that any
TOT, CTBID Assessments, penalties, interest, fines, and/or other amounts assessed against it were
not due or are the subject of a claim for refund under applicable law, or from enforcing any and all
rights accorded to it pursuant to law.
5. During any period in which this Agreement is in effect, and without waiving any audit
rights provided to the City, with respect to any transaction for which TOT and/or CTBID
Assessments are due and paid pursuant to this Agreement, the City agrees to audit HomeAway in
the manner provided in the Carlsbad Municipal Code, except that: (a) HomeAway will not be
r~quired on the basis of this Agreement to disclose the Homeowner or Guest name or property
address at issue; and (b) the City shall not, directly or indirectly, audit any individual Guest or
Homeowner relating to such. Nothing in this paragraph prevents the City from auditing an
individual who (or entity that) happens to be a Homeowner based upon transactions that the City
learns of independently. ·
6. Upon the City's request in connection with an audit, HomeAway shall submit all applicable .
transaction data based on reservation ID, or other type of transaction ID, as maintained by
HomeAway in its ordinary comse of business. The Parties agree that HomeAway is not required,
on the basis of this Agreement, to produce any Homeowner or Guest name or address relating to
any transaction in connection with an audit or otherwise, except pursuant to a lawfully issued
subpoena.
7. During any period in which this Agreemept is in effect, and on the condition that
HomeAway is in compliance with its obligations under this Agreement, and solely with respect to
a Homeowner's activity on the HomeAway Platfo1m, said Homeowner shall not be required to
individually register with the City to collect, remit and report TOT or CTBID Assessments.
However, nothing in this Agreement shall relieve Guests or Homeowners from any responsibilities
with respect to TOT or CTBID Assessments, including, without limitation, any obligation to
register with the City or to collect, remit, and report TOT and CTBID Assessments for transactions
completed through any other means, method, device, or platform, or restrict the City from
investigating or enforcing any provision of applicable law against any such person or entity for
any occupancy arranged directly or indirectly through any other means.
8. The City agrees, for the purpose of facilitating this Agreement, that it shall not make any
assessment, supplemental assessment, or claim for TOT or CTBID Assessments as to HomeAway
for any period prior to the Effective Date of this Agreement; and it releases and discharges any
claims against HomeAway (and its present or former: successors, direct or indirect members,
parents, subsidiaries, affiliates, agents, legal representatives, insurers, employees, officers,
directors and shareholders) from any and all past, present, or future assessments, causes of action,
claims, demands, expenses, damages, or losses, of whatever kind or nature, known or unknown,
asseited or unasserted, in law or equity, whether statutory or common la\ly', which existed, accrued,
or arose related to the TOT and/or CTBID Assessments for the period preceding the Effective Date
of this Agreement.
9. Any and all tax retums, information, data, records or documents provided to the City in
connection with this Agreement, including but not limited to any audit, shall be deemed
2
confidential and shall not be shared with any third party, including but not limited to any other
governmental agency or any other jurisdiction.
10. This Agreement is solely for the purpose of facilitating the administration and collection
of TOT and CTBID Assessments due for transactions booked and paid for through the HomeAway
Platform. It is expressly understood and agreed by the Parties that neither Party has made any
concessions regarding the merits of its respective positions nor the merits of the other Party's
positions with respect to the collection of TOT and CTBID Assessments addressed in this
Agreement.
11. The City agrees to work with HomeAway to answer any questions received from
Homeowners and the public about HomeAway's tax collection and remittance process under this
Agreement. If requested by the City, HomeAway will provide information to the City to be used
by the City to answer questions from Homeowners, travelers and others.
12. No modification of this Agreement shall be effective unless in writing and signed by both
parties.·
13. This Agreement may by terminated by HomeAway or the City upon 30 days' written
notification to the other Party. Any termination under this Paragraph shall not affect the duty of
HomeAway to remit to the City any TOT and CTBID Assessments collected from Guests up
through and including the effective date of termination of this Agreement, even if not remitted by
HomeAway to the City as of the date of termination.
14. This Agreement, its construction and any and all disputes arising out of or relating to it,
shall be interpreted in accordance with the substantive laws of the State of Califomia without
regard to its conflict oflaw principles.
15. This Agreement contains the entire agreement of the Parties with respect to the subject
matter of this Agreement, and supersedes all prior negotiations, agreements, and understandings
with respect thereto.
16. The Patties represent and watTant that they each have the legal authority to enter this
Agreement, that the person executing the Agreement on behalf of either Party is authorized to do
so, and that the Agreement shall be binding and enforceable when duly executed and delivered by
each Party.
17. This Agreement is executed in two (2) counterparts, each of which shall be deemed an
original.
18. This Agreement has been jointly prepared by the Parties hereto, and shall not be const:med
more strictly against either Party.
19. Neither Patty may assign any of its rights or obligations hereunder, whether by operation
of law or otherwise, without the prior written consent of the other Party which consent shall not
be unreasonably withheld. Notwithstanding the foregoing, HomeAway may assign this
Agreement in its entirety without the City's consent in connection with a merger, acquisition,
corporate reorganization, or sale of all or substantially all of its assets provided the assignee has
3
agreed to be bound by all of the terms of this Agreement and all TOT, CTBID Assessments, and
all other sums due at the time of the attempted assignment have been paid in full. Any attempt by
a Party to assign its rights or obligations under this Agreement in breach of this section shall be
void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit
of the Parties, their respective successors, and permitted assigns.
20. All notices under this Agreement shall be in writing and shall be deemed to have been
given upon: (i) personal delivery; (ii) the third business day after first class mailing, postage
prepaid; or (iii) the second business day after sending by overnight mail, by facsimile with
telephonic confirmation of receipt, or by email. Notices shall be addressed to the attention of the
following persons, provided each Party may modify the authorized recipients by providing written
notice to the other Party: ·
To HomeAway:
With a copy to:
To the:
HomeAway.com, Inc.
Attn: Tom Pucci
1111 Expedia Group Way, West
Seattle, WA 98119
Email: tpucci@expediagroup
HomeAway.com, Inc.
Attn: Christy Vernor
11800 Domain Bivd, Ste 300
Austin, TX 78758
Email: cvernor@expediagroup.com
City of Carlsbad, California
Attn: Cheryl Gerhardt
Finance Manager
Finance Department
City of Carlsbad
1635 Faraday Ave.
Carlsbad, CA 92008
Email:cheryl.gerhardt@carlsbadca.gov
[ Remainder of this page intentionally left blank Signature page to follow.]
4
Scott Chadwick, City Manager
2~ dayof ~< , 2019.
HOMEA WAY.COM, INC., a Delaware :ora~-_
Tom Pucci
2--Z dayof/2<ffe'k ==·2019
5